situated against the above-named Defendants and, demanding a trial by jury, complain and I. INTRODUCTION

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2 1 1 1 Plaintiffs bring this civil action on behalf of themselves and all others similarly situated against the above-named Defendants and, demanding a trial by jury, complain and allege as follows: I. INTRODUCTION 1. As alleged below, Defendants and their co-conspirators engaged in a comprehensive conspiracy to fix, raise, maintain, or stabilize the prices of, or allocate the market for, dynamic random access memory ( DRAM ).. During the Class Period, Defendants and their co-conspirators manufactured DRAM chips and assembled those chips into DRAM modules for use in computers and other DRAM-containing devices.. Defendants and their co-conspirators fixed the price of DRAM sold in the United States by communicating sensitive price and supply information among themselves on nearly a daily basis sensitive price and supply information.. More than 0 employees of Defendants and their co-conspirator companies participated in illicit conduct during the Class Period, including providing or receiving information related to pricing and sales, production capacity, output, and technology roadmaps.. Plaintiffs are natural persons and businesses (nongovernment entities) that indirectly purchased price-fixed DRAM in module or chip form or as part of a computer, printer, graphic card, game system, or other DRAM containing device in the United States.. Because the overcharges for DRAM were passed from direct purchasers to indirect purchasers, Plaintiffs and the class they purport to represent paid more for DRAM and DRAM-containing devices than they would have paid absent the conspiracy, and were thereby harmed. Defendants and their co-conspirators understood and intended that indirect purchasers would bear the harm created by the price fixing conspiracy. II. JURISDICTION AND VENUE. This complaint is filed under Sections, C, 1 and of the Clayton Act, --

3 1 1 1 U.S.C., and, to obtain injunctive relief for violations of Section 1 of the Sherman Act, U.S.C. 1, to recover damages under state antitrust and consumer protection laws, and to recover the costs of suit, including reasonable attorneys fees, for the injuries that Plaintiffs and all others similarly situated sustained as a result of Defendants and their coconspirators violations of those laws.. The Court has jurisdiction over the federal claim under U.S.C. and 1. The Court has jurisdiction over the state law claims under U.S.C. 1 because those claims are so related to the federal claim that they form part of the same case or controversy. The Court also has jurisdiction over the state law claims under U.S.C. 1 because the amount in controversy for the Class exceeds $,000,000, and at least one member of the class is a citizen of a State and the Defendants are citizens or subjects of a foreign State.. Venue is proper in this District under U.S.C. and U.S.C. 11 because Defendants and their co-conspirators reside, transact business, or are found within this District, and a substantial part of the events giving rise to the claims arose in this District.. The activities of Defendants and their co-conspirators, as described herein, were within the flow of, were intended to, and did have a substantial effect on the interstate commerce of the United States. The actions of Defendants and their co-conspirators, in furtherance of their conspiracy, substantially affected commerce in California, and as such, Defendants and their co-conspirators have purposely availed themselves of the laws of California. III. TOLLING AGREEMENT. On June, 0, a tolling agreement was entered between co-lead counsel for the indirect purchaser plaintiffs in In Re Dynamic Random Access Memory (DRAM) Antitrust Litigation, MDL No. 1, and Defendants. Since that time, the Plaintiffs have investigated the claims alleged in this complaint and have reached a settlement agreement with Defendants that will be presented to the Court. --

4 1 1 1 IV. DEFINITIONS 1. As used herein, the term Dynamic Random Access Memory or DRAM includes extended data out DRAM (EDO DRAM), fast-page mode DRAM (FPM DRAM), reduced latency DRAM (RLDRAM), synchronous DRAM (SDRAM), Rambus DRAM (RDRAM), asynchronous DRAM (ASYNC) and double data rate DRAM (DDR DRAM), including modules containing same. For purposes of this Complaint, DRAM does not include static random access memory (SRAM). 1. As used herein, products containing DRAM include computers, such as desktops, laptops (or notebooks), servers, and workstations, as well as PDAs, telecommunications devices, set-top boxes, video game consoles, printers, copiers, and facsimile machines ( DRAM-containing devices ). 1. As used herein, DRAM module means DRAM in the form of multiple chips glued together on a circuit board.. As used herein, DRAM chip means an individual electronic microchip or integrated circuit that is used to store digital information and provide high-speed storage and retrieval of data.. As used herein, the term OEM means any original equipment manufacturer of computers. OEMs include, but are not limited to, Dell, Gateway, Apple, IBM, Compaq and Hewlett Packard.. As used herein, the term Module Maker means those manufacturers, other than Defendants and their co-conspirators, that assembled loose DRAM chips into DRAM modules.. As used herein, the term Class Period means from January 1,, through December 1, 0. --

5 As used herein, the indirect purchase of DRAM includes both the indirect purchase of price-fixed DRAM in module or chip form and the purchase of price-fixed DRAM as a component of a computer, printer, graphic card, game system, or other DRAMcontaining device in the United States. V. THE PARTIES A. The Plaintiffs. Plaintiff Petro Computer Systems, Inc., a California corporation, indirectly purchased DRAM from Defendants, their co-conspirators, or both during the Class Period, for use in manufacturing electronic devices for resale and was injured as a result of Defendants and their co-conspirators illegal conduct.. Plaintiff Heather Delaney, a New York resident, indirectly purchased DRAM from Defendants, their co-conspirators, or both during the Class Period and was injured as a result of Defendants and their co-conspirators illegal conduct.. Plaintiff Ben Stewart, a New York resident, indirectly purchased DRAM from Defendants, their co-conspirators, or both during the Class Period and was injured as a result of Defendants and their co-conspirators illegal conduct.. Plaintiff Johnson & Jennings, Inc., a California corporation, indirectly purchased DRAM from Defendants, their co-conspirators, or both during the Class Period and was injured as a result of Defendants and their co-conspirators illegal conduct.. Plaintiff Robert Cademy, a California resident, indirectly purchased DRAM from Defendants, their co-conspirators, or both during the Class Period, by purchasing DRAM modules, for his own personal use, and was injured as a result of Defendants and their co-conspirators illegal conduct. B. The Defendants. Defendant Toshiba Corporation is headquartered at 1-1, Shibaura 1-chome, Minato-ku, Tokyo -001, Japan. During the relevant time period set out below in this Complaint, Defendant Toshiba Corporation manufactured, sold, and distributed DRAM to --

6 1 1 1 customers throughout the United States both directly and through its agent Defendant Toshiba America Electronic Components, Inc.. Defendant Toshiba America Electronic Components, Inc. ( Toshiba America ) is a wholly owned and controlled subsidiary of Toshiba Corporation, with its principal place of business at 00 MacArthur Boulevard, Suite 00, Irvine, California 1. During the time period covered by this Complaint, Defendant Toshiba America manufactured, sold, and distributed DRAM to customers throughout the United States.. Toshiba Corporation and Toshiba America are referred to collectively herein as Defendants or Toshiba. C. Co-Conspirators. Mitsubishi Electric Corporation is a business entity organized under the laws of Japan, with its principal place of business at Tokyo Building --, Marunouchi, Chiyodaku, Tokyo 0-, Japan. During the time period covered by this Complaint, Defendant Mitsubishi Electric Corporation manufactured, sold, and distributed DRAM to customers throughout the United States.. Mitsubishi Electric & Electronics USA, Inc. is a wholly owned and controlled subsidiary of Defendant Mitsubishi Electric Corporation. Mitsubishi Electric & Electronics USA, Inc. is headquartered at Plaza Drive, Cypress, California. Defendant Mitsubishi Electric & Electronics USA, Inc. is a business entity organized under the laws of Delaware, with its principal place of business at 00 Corporate Woods Parkway, Vernon Hills, Illinois. During the time period covered by this Complaint, Defendant Mitsubishi Electric & Electronics USA, Inc. manufactured, sold, and distributed DRAM to customers throughout the United States. 0. Mitsubishi Electric Corporation and Mitsubishi Electric & Electronics USA, Inc. are referred to collectively herein as Mitsubishi. 1. Micron Technology, Inc. is a Delaware corporation, with its principal place of business at 000 South Federal Way, Boise, Idaho. During the time period covered by this --

7 1 1 1 Complaint, Micron Technology, Inc. manufactured, sold, and distributed DRAM throughout the United States.. Micron Semiconductor Products, Inc. is a wholly owned and controlled subsidiary of Micron Technology, Inc., with its principal place of business at 000 South Federal Way, Boise, Idaho. During the time period covered by this Complaint, Micron Semiconductor Products, Inc. sold and distributed DRAM to customers throughout the United States, including sales through its Crucial Technology division. Micron Technology, Inc., Micron Semiconductor Products, Inc., and the Crucial Technology division are referred to collectively herein as Micron.. Infineon Technologies AG is a German corporation, with its principal place of business at Am Campeon 1-1, D-, Neubiberg, Bavaria, Germany. During the time period covered by this Complaint, Infineon Technologies AG manufactured, sold, and distributed DRAM throughout the United States. On May 1, 0, Infineon Technologies AG carved out its DRAM business as a separate company called Qimonda AG.. Infineon Technologies North America Corp. is a wholly owned and controlled subsidiary of Infineon Technologies AG, with its principal place of business at 0 North McCarthy Boulevard, Milpitas, California 0. During the time period covered by this Complaint, Infineon Technologies North America Corp. sold and distributed DRAM to customers throughout the United States. Infineon Technologies AG, Infineon Technologies North America Corp. and Qimonda AG are referred to collectively herein as Infineon.. Hynix Semiconductor, Inc. is a business entity organized under the laws of South Korea, with its principal place of business at 1, Gyeongchung-daero, Bubal-eub, Ichon-si, Gyeonggi-do, Korea. During the time period covered by this Complaint, Hynix Semiconductor, Inc. manufactured, sold, and distributed DRAM to customers throughout the United States.. Hynix Semiconductor America, Inc. is a wholly owned and controlled subsidiary of Hynix Semiconductor, Inc., with its principal place of business at 1 North --

8 1 1 1 First Street, San Jose, California. During the time period covered by this Complaint, Hynix Semiconductor America, Inc. sold and distributed DRAM to customers throughout the United States. Hynix Semiconductor, Inc. and Hynix Semiconductor America, Inc. are referred to collectively herein as Hynix.. Hitachi, Ltd. is a business entity organized under the laws of Japan, with its principal place of business at - Marunouchi 1-chome, Chivoda-ku, Tokyo, 0-0, Japan. During the time period covered by this Complaint, Defendant Hitachi, Ltd. manufactured, sold, and distributed DRAM to customers throughout the United States.. Samsung Electronics Co. Ltd. is a business entity organized under the laws of South Korea, with its principal place of business at Samsung Electronics Bldg., 1- Seocho -dong, Seocho-gu, Seoul, Korea. During the time period covered by this Complaint, Samsung Electronics Co. Ltd. manufactured, sold, and distributed DRAM to customers throughout the United States.. Samsung Semiconductor, Inc. is a wholly owned and controlled subsidiary of Samsung Electronics Co. Ltd. with its principal place of business at North First Street, San Jose, California. During the time period covered by this Complaint, Samsung Semiconductor, Inc. sold and distributed DRAM to customers throughout the United States. Samsung Electronics Co. Ltd., and Samsung Semiconductor, Inc. are referred to collectively herein as Samsung. 0. Mosel Vitelic, Inc. is a business entity organized under the laws of Taiwan, with its principal place of business at No.1, Creation Rd.1, Science-Based Industrial Park, Hsinchu, Taiwan, R.O.C. During the time period covered by this Complaint, Mosel Vitelic, Inc., manufactured, sold, and distributed DRAM to customers throughout the United States. 1. Mosel Vitelic (USA), Inc. was a wholly owned and controlled subsidiary of Mosel Vitelic, Inc., with its principal place of business at North First Street, San Jose, California. During the time period covered by this Complaint, Mosel Vitelic (USA), Inc. sold and distributed DRAM to customers throughout the United States. Mosel Vitelic, Inc. --

9 1 1 1 and Mosel Vitelic (USA), Inc. are referred to collectively herein as Mosel Vitelic or Mosel.. Nanya Technology Corporation is a business entity organized under the laws of Taiwan, with its principal place of business at HWA YA Technology Park,, Fu Hsing rd Rd., Kueishan, Taoyuan, Taiwan, R.O.C. During the time period covered by this Complaint, Nanya Technology Corporation manufactured, sold, and distributed DRAM to customers throughout the United States.. Nanya Technology Corporation USA, Inc. is a wholly owned and controlled subsidiary of Nanya Technology Corporation with its principal place of business at Old Ironsides Drive, Suite, Santa Clara, California. During the time period covered by this Complaint, Nanya Technology Corporation USA, Inc. sold and distributed DRAM to customers throughout the United States. Nanya Technology Corporation and Nanya Technology Corporation USA, Inc. are referred to collectively herein as Nanya.. Winbond Electronics Corporation is a business entity organized under the laws of Taiwan, with its headquarters at No., Keya 1 st Rd., Daya Dist. Central Taiwan Science Park, Taichung City, Taiwan, R.O.C. During the time period covered by this Complaint, Winbond Electronics Corporation manufactured, sold, and distributed DRAM to customers throughout the United States.. Winbond Electronics Corporation America, Inc. is a wholly owned and controlled subsidiary of Winbond Electronics Corporation, with its principal place of business at North First Street, San Jose, California. During the time period covered by this Complaint, Winbond Electronics Corporation America, Inc. sold and distributed DRAM to customers throughout the United States. Winbond Electronics Corporation and Winbond Electronics Corporation America, Inc. are referred to collectively herein as Winbond.. Elpida Memory, Inc. is a business entity organized under the laws of Japan, with its principal place of business at Sumitomo Seimei Yaesu Bldg., F, -1 Yaseu - chome, Chuo-ku, Tokyo -00, Japan. During the time period covered by this --

10 1 1 1 Complaint, Elpida Memory, Inc. manufactured, sold, and distributed DRAM to customers throughout the United States.. Elpida Memory (USA), Inc. is a wholly owned and controlled subsidiary of Elpida Memory, Inc., with its principal place of business at Sonora Court, Sunnyvale, California. During the time period covered by this Complaint, Elpida Memory (USA), Inc. sold and distributed DRAM to customers throughout the United States. Elpida Memory, Inc. and Elpida Memory (USA), Inc. are referred to collectively herein as Elpida.. NEC Electronics America, Inc. ( NEC ) was a wholly owned and controlled subsidiary of NEC Electronics Corporation, with its principal place of business at 0 Scott Boulevard, Santa Clara, California and its manufacturing plant in Roseville, California. During the time period covered by this Complaint, NEC sold and distributed DRAM to customers throughout the United States.. The acts charged in this Complaint were done by Defendants and their coconspirators, or were authorized, ordered or done by their respective officers, agents, employees or representatives while actively engaged in the management of Defendants and their co-conspirators business or affairs. 0. Defendants and their co-conspirators named herein acted as the agent or joint venturer of, or for the other Defendant and their co-conspirators with respect to, the acts, violations and common course of conduct alleged herein. VI. CLASS ACTION ALLEGATIONS 1. Plaintiffs bring this suit as a class action pursuant to Rules (b)() and (b)() of the Federal Rules of Civil Procedure, on behalf of themselves and a Plaintiff Class ( the Class ) composed of and defined as follows: All natural persons and non-governmental entities, who, at any time during the period January 1, through December 1, 0, purchased DRAM anywhere in the United States indirectly from Defendants or their co-conspirators. Specifically excluded from this Class are Defendants and their co-conspirators; the officers, directors or employees and any entity in which they have a controlling interest; and any of their affiliates, legal representatives, heirs or assigns. --

11 1 1 1 Also excluded are any federal, state or local governmental entities, any judicial officer presiding over this action and the members of his/her immediate family and judicial staff, and any juror assigned to this action.. This action has been brought and may be properly maintained as a class action pursuant to Rule of the Federal Rules of Civil Procedure for the following reasons: a. The Class is ascertainable and there is a well-defined community of interest among the members of the Class; b. Based upon the nature of the trade and commerce involved and the number of indirect purchasers of DRAM, the members of the Class number in the millions and are sufficiently numerous that joinder of all Class members is not practicable; c. Plaintiffs claims are typical of the claims of the members of the Class because Plaintiffs indirectly purchased DRAM from Defendants or their co-conspirators, and therefore Plaintiffs claims arise from the same common course of conduct giving rise to the claims of the members of the Class and the relief sought is common to the Class; d. The following common questions of law or fact, among others, exist as to the members of the Class: i. Whether Defendants and their co-conspirators formed and ii. iii. iv. operated a combination or conspiracy to fix, raise, maintain, or stabilize the prices of, or allocate the market for, DRAM; Whether the combination or conspiracy caused DRAM prices to be higher than they would have been in the absence of Defendants and their co-conspirators conduct; The operative time period of Defendants and their coconspirators combination or conspiracy; Whether Defendants and their co-conspirators conduct caused --

12 1 1 1 injury to the business or property of Plaintiffs and the members of the Class; v. The appropriate measure of the amount of damages suffered by the Class; vi. Whether Defendants and their co-conspirators conduct violates Section 1 of the Sherman Act; vii. Whether Defendants and their co-conspirators conduct violates Sections and 0 of the California Business and Professions Code; and viii. The appropriate nature of class-wide equitable relief. e. These and other questions of law or fact which are common to the members of the Class predominate over any questions affecting only individual members of the Class; f. Plaintiffs will fairly and adequately protect the interests of the Class in that Plaintiffs have no interests that are antagonistic to other members of the Class and have retained counsel competent and experienced in the prosecution of class actions and antitrust litigation to represent themselves and the Class; g. A class action is superior to other available methods for the fair and efficient adjudication of this litigation since individual joinder of all damaged Class members is impractical. The damages suffered by individual Class members are relatively small, given the expense and burden of individual prosecution of the claims asserted in this litigation. Thus, absent the availability of class action procedures, it would not be feasible for Class members to redress the wrongs done to them. Even if the Class members could afford individual litigation, the court system could not. Further, individual litigation presents the -1-

13 1 1 1 potential for inconsistent or contradictory judgments and would greatly magnify the delay and expense to all parties and to the court system. Therefore, the class action device presents far fewer case management difficulties and will provide the benefits of unitary adjudication, economy of scale, and comprehensive supervision by a single court; h. Defendants and their co-conspirators have acted, and refused to act, on grounds generally applicable to the Class, thereby making appropriate final injunctive relief with respect to the Class as a whole; and i. In the absence of a class action, Defendants and their co-conspirators would be unjustly enriched because they would be able to retain the benefits and fruits of their wrongful conduct. VII. NATURE OF TRADE AND COMMERCE. Throughout the period of time covered by this Complaint, Defendants and their co-conspirators engaged in the business of marketing and selling DRAM throughout the United States. Worldwide sales of DRAM totaled approximately $1 billion in 01 with the United States accounting for a significant share of the market. There are more than $ billion of DRAM sales annually in the United States. The top six manufacturers control over 0% of the worldwide market.. The co-conspirators are the largest manufacturers and sellers of DRAM in the United States market. More than seventy percent (0%) of the DRAM market was controlled by co-conspirators Micron, Infineon, Hynix and Samsung during the Class Period. Defendants and the remaining co-conspirators made up the bulk of the remaining 0% of the market.. California is the largest market in the world for DRAM. It is the world-wide center of the computer industry and other industries that depend upon the DRAM market. Statements concerning prices and market conditions for DRAM were disseminated by Defendants and their co-conspirators from and into California on a regular and continuous -1-

14 1 1 1 basis. The conspiracy was centered in, carried out, implemented, and perfected in California. All members of the Class, whether or not California residents, are entitled to recover under California law. A. What is DRAM?. DRAM is the dominant, most common form of computer memory. Random Access Memory means that the data, stored in the form of 0s and 1s, can be accessed directly from any part of the memory, rather than having to proceed sequentially from some starting place. DRAM is called dynamic because it must have its storage cells refreshed or given a new electronic charge every few milliseconds.. DRAM has no free-standing use. In other words, it must be inserted into a device such as a computer to serve any function.. DRAM is a commodity. It has been described as like milk or bread, and that it varies little from manufacturer to manufacturer. B. How is DRAM Manufactured and Sold to Direct Purchasers?. DRAM production has been dominated by a handful of leading manufacturers namely, Defendants and their co-conspirators. 0. Defendants and their co-conspirators manufactured DRAM in fabrication plants. There, wafers are cut into individual chips, called dice. Once the dice have the electronics printed on them, the chip is complete. 1. Because DRAM has no independent utility, the value of, and thus demand for, DRAM is derived through the demand for products that need volatile memory.. Most DRAM chips are assembled by Defendants and their co-conspirators (or their contract labor) into DRAM modules in order to be used in DRAM-containing devices. DRAM modules are a packaging option necessitated by, and developed for, the computer segment of the electronics market.. A DRAM module is made from DRAM chips, a printed circuit board ( PCB ), and a bonding agent to attach the chips to the PCB. The vast majority of the cost of -1-

15 1 1 1 a DRAM module is the cost of chips.. The close relationship between modules and chips is reflected by the price parity between them. At any given time, the price of modules was only slightly above the aggregate price of the loose chips mounted on the PCB. C. How do Direct Purchasers Buy DRAM?. Although DRAM manufacturers such as Micron sold a limited amount of DRAM through its retail arm (Crucial), the vast majority of DRAM was sold to OEMs either through contracts that were negotiated bi-weekly or monthly, or by way of the spot market. Because Defendants and their co-conspirators fixed prices in the spot and contract markets, all direct purchasers were affected by the price-fixing conspiracy.. OEMs purchased DRAM on a contractual basis to ensure availability of parts and to guard against unexpected price increases.. During the Class Period, the contract market comprised approximately 0% of the DRAM sold for use in computers.. Because OEMs required vast quantities of DRAM to be readily available, the Defendants and their co-conspirators established hubs for purposes of storing DRAM near the OEMs facilities. The OEMs were not charged for the DRAM until they actually pulled inventory out of the hub. By manipulating the inventory in these hubs, Defendants and their co-conspirators could effectively create artificial shortages for the OEMs.. Smaller direct purchasers purchased their DRAM from Defendants and their co-conspirators on the spot market. The spot market is a purchasing channel primarily utilized by independent distributors and others who buy and sell DRAM for immediate delivery. OEMs also purchase DRAM from the spot market when prices and supply/demand issues so dictate. Although the major manufacturers of DRAM sell primarily to the contract market, the spot market absorbs production overages and otherwise unsold DRAM. The DRAM manufacturers carefully track spot market pricing not only because of the revenue derived from spot market sales, but, more importantly, because spot market pricing serves as --

16 1 an important benchmark for contract negotiations with the OEMs. 0. During the Class Period, all DRAM pricing was determined from a benchmark price commonly referred to as the spot price. This spot price was compiled and published daily by data services such as dramexchange.com or Converge. Each day, Defendants and their co-conspirators received these lists and used them as the benchmark for pricing to all purchasers. 1. As one Infineon document declares: ALL PRICING IS DEPENDENT ON SPOT PRICE. (Emphasis in original.) Another Infineon document notes that spot pricing is a leading indicator for contract pricing and that the contract price tracks spot price with lag phase depending on negotiation period.. The contract and spot markets were closely correlated: 1 1. The spot and contract markets are sufficiently interrelated so that by manipulating sales made to the spot market, Defendants and their co-conspirators could bolster contract market pricing. Mosel Vitelic s Kevin Chen remarked on this in a November internal , [W]e have visited other vendors in this period their strategies are to keep spot price high so that they can get a better contract price I think the way to solve price gap is to sell key account more parts and reduce spot percentage as soon as possible. --

17 1 1 1 D. How Do the Indirect Purchasers Buy DRAM?. Plaintiffs and the class they purport to represent bought DRAM or DRAM containing devices from direct purchasers such as Dell, Apple, Gateway or downstream through resellers such as Best Buy, Costco, Radio Shack. In most cases, indirect purchasers bought DRAM as part of a DRAM-containing device such as a computer. E. Plaintiffs Injuries. Because Defendants and their co-conspirators controlled the market for DRAM, they were able to artificially elevate the price of DRAM and impose a significant overcharge on direct purchasers. Because there are no substitutes for computers and other DRAM-containing devices, OEMs were able to pass through Defendants and their coconspirators illicit overcharge to indirect purchasers.. Plaintiffs were thus injured by paying supra-competitive prices for DRAM and devices containing DRAM.. The economic and legal literature recognizes that unlawful overcharges in a component normally result in higher prices for products which contain that price-fixed component. As Professor Herbert Hovenkamp, a noted antitrust scholar has stated in his treatise, Federal Antitrust Policy, The Law of Competition and Its Practice () at : A monopoly overcharge at the top of a distribution chain generally results in higher prices at every level below. For example, if production of aluminum is monopolized or cartelized, fabricators of aluminum cookware will pay higher prices for aluminum. In most cases they will absorb part of these increased costs themselves and pass part along to cookware wholesalers. The wholesalers will charge higher prices to the retail stores, and the stores will do it once again to retail consumers. Every person at every stage in the chain likely will be poorer as a result of the monopoly price at the top. Theoretically, one can calculate the percentage of any overcharge that a firm at one distributional level will pass on to those at the next level.. Similarly, two other antitrust scholars Professors Robert G. Harris (Professor Emeritus and former Chair of the Business and Public Policy Group at the Haas School of Business at the University of California at Berkeley) and Lawrence A. Sullivan --

18 1 1 1 (Professor of Law Emeritus at Southwestern Law School and author of the Handbook of the Law of Antitrust) have observed that in a multiple-level chain of distribution, passing on monopoly overcharges is not the exception: it is the rule.. Just as DRAM can be physically traced through the supply chain, so can its price be traced to show that changes in the prices paid by direct purchasers affected prices paid by indirect purchasers of DRAM. VIII. DEFENDANTS ILLEGAL CONDUCT 0. Defendants and their co-conspirators have engaged in a course of illegal conduct constituting and effectuating a contract, combination, trust or conspiracy, the effect of which was to illegally raise the prices at which they sold DRAM. 1. Defendants and their co-conspirators, through their officers, directors and employees, effectuated the aforesaid conspiracy between themselves by, among other things: a. Participating in meetings and conversations, including through various trade associations and committees, to discuss the prices of DRAM in the United States; b. Agreeing, during those meetings and conversations, to charge prices at specified levels and otherwise to increase and maintain prices of DRAM sold in the United States; c. Issuing price announcements and quotations in accordance with the agreements reached; and d. Selling DRAM to various customers in the United States at noncompetitive prices.. Defendants and their co-conspirators contract, combination, trust or conspiracy was centered in, carried out, effectuated and perfected mainly in the State of California. Therefore, all members of the Class, whether or not California residents, are entitled to recover under California law. A. Defendants Conduct --

19 Defendants employees regularly communicated with competitors about prices, and shared competitors information with their supervisors.. On several different occasions in 01, an Elpida employee obtained Toshiba s pricing information to Dell and Compaq.. Hynix employees appeared to have price discussions directly with Toshiba or acquired Toshiba s price quoting intentions from other competitors in its attempt to coordinate pricing.. A Hynix employee recommended that his company move to the new price that was supposedly agreed upon between Elpida and Toshiba.. Defendants employees and Infineon employees held meetings that were related to pricing.. Infineon employees internally shared Defendants pricing information and noted that Toshiba confirmed it.. Micron employees directly communicated with Defendants employees regarding pricing to OEMs. 0. Several Samsung employees contacted Defendants about pricing information. 1. Defendants shared product roadmaps, prices lists, and confidential sales data with Samsung.. The European Commissioned fined Defendants over. million for their participation in a cartel with Infineon, Hynix, Samsung, NEC, Hitachi, Mitsubishi, and Nanya that coordinated price levels and quotations for DRAM sold to OEMs in the European Economic Area from July 1,, to June, 0. B. Mitsubishi s Conduct. A Mitsubishi employee sent a Micron employee Mitsubishi s latest DRAM Pricing Roadmap for the Micron employee to use for his reference.. Employees of Infineon and Mitsubishi exchanged roadmaps.. Infineon, Elpida, and Mitsubishi discussed their respective strategies for --

20 1 1 1 bidding in an auction hosted by Sun.. Employees of Elpida, Infineon, and Nanya USA indicated in their depositions that they had contacts with Mitsubishi employees.. Samsung employees discussed price ranges and predictions with Mitsubishi employees. Samsung employees used Mitsubishi s pricing information to make pricing recommendations to other Samsung employees.. Elpida employees distributed competitor information by , including information about Mitsubishi s prices.. Competitors such as Micron, Elpida, and Infineon possess Mitsubishi s DRAM pricing and supply information. 0. Samsung documents consistently show its possession of Mitsubishi s competitive information. 1. A Hynix employee had access to Mitsubishi s pricing information.. An Infineon employee obtained Mitsubishi s pricing to Dell.. The European Commission fined Mitsubishi over. million for its participation in a cartel with Infineon, Hynix, Samsung, NEC, Hitachi, Toshiba, and Nanya that coordinated price levels and quotations for DRAM sold to OEMs in the European Economic Area from July 1,, to June, 0. C. Samsung s Conduct. In sworn evidence, Samsung acknowledged that of its executives and employees may have obtained or received competitive information and provided a list of 0 additional executives and personnel who may also have been involved.. Samsung Semiconductor and Samsung Electronics Co. pleaded guilty to criminal charges in November 0, and paid a $00 million fine. The guilty plea covered the time period April 1,, to June, 0, wherein Samsung conspired to fix the prices of DRAM sold to certain computer and server manufacturers. Affected customers included Dell, Compaq, Hewlett Packard, Apple, IBM, and Gateway. --

21 Samsung employees Sun Woo Lee, Yeongho Kang, and Young Woo Lee entered guilty pleas in April 0. These guilty pleas covered various periods from as early as January 1, until on or about June, 0, wherein these individuals conspired to fix the prices of DRAM sold to certain computer and server manufacturers in the United States.. Another Samsung employee, Young Hwan Park pleaded guilty in December 0. This guilty plea covered the period April 1, 01, until on or about June, 0, wherein this individual conspired to fix the prices of DRAM sold to certain OEMs.. In September 0, Samsung s Thomas Quinn pleaded guilty to fix[ing] the prices of DRAM sold to certain OEMs. D. Hynix s Conduct. Hynix has acknowledged that at least of its executives had contacts with competitors related to pricing of the DRAM market in general. Beyond these identified executives, Plaintiffs have identified at least additional Hynix personnel who were similarly immersed in the conspiracy. 0. In May 0, Hynix Semiconductor, Inc. pleaded guilty and was fined $ million. The guilty plea covered the period April 1,, to June, 0, wherein Hynix conspired to fix the prices of DRAM to certain computer and server manufacturers. Hynix admitted that the affected customers included Dell, Compaq, Hewlett Packard, Apple, IBM, and Gateway. 1. Hynix employees D.S. Kim (Senior Vice President and General Manager of Worldwide Sales and Marketing), C.K. Chung (Director of Worldwide Strategic Account Sales), K.C. Suh, and C.Y. Choi entered guilty pleas in March 0. These guilty pleas covered various periods from April 1, 01, until on or about June, 0, and acknowledged that these individuals conspired to fix the prices of DRAM to certain computer and server manufacturers. Affected customers included Dell, Compaq, Hewlett Packard, Apple, IBM, and Gateway. --

22 The following are examples of Hynix s illegal behavior: a. C.K. Chung collected pricing information from subordinates and competitors and relayed that information to D.S. Kim. b. Paul Palonsky, a salesperson with responsibility for the IBM account, acknowledged in sworn testimony that he gathered competitor price information directly from competitors, including Samsung, Micron, Infineon, Hitachi, Toshiba, Elpida, LG, and NEC. c. Hynix was aware of Samsung and Micron prices before it submitted a bid to Apple in August 01. d. Also in 01, a Hynix refers to the artificial product shortage created by Micron, and states that Micron will follow Samsung or Hynix if Apple accepts a price increase. E. Infineon s Conduct. Infineon has acknowledged that at least of its executives had pricingrelated contacts with DRAM competitors. Plaintiffs have identified Infineon personnel who were engaged in conspiratorial conduct.. Infineon Technology AG pleaded guilty in October 0, and was fined $0 million. The guilty plea covered the time period July 1,, to June, 0, wherein Infineon conspired to fix the prices of DRAM sold to certain computer and server manufacturers. Affected customers included Dell, Compaq, Hewlett Packard, Apple, IBM, and Gateway. 1. Four Infineon executives, T. Rudd Corwin, Heinrich Florian, Gunter Hefner and Peter Schaefer, pleaded guilty in December 0. These guilty pleas covered various periods from as early as July 1, 01, until on or about June, 0, wherein these individuals participated in an international conspiracy to fix prices in the DRAM market. 1. An example of Infineon s illegal behavior is that Infineon employees exchanged s discussing competitors Toshiba, Samsung, and Micron and their price --

23 1 1 1 targets to Dell. F. Elpida s Conduct 1. Plaintiffs have identified at least 0 Elpida employees who participated in conspiratorial conduct during the Class Period. Plaintiffs have identified at least 1 NEC employees who participated in conspiratorial conduct during the Class Period. 1. In January 0, Elpida pleaded guilty and, with its parent companies, NEC and Hitachi, paid fines of $ million. The guilty plea covered the time period April 1,, to June, 0, wherein Elpida conspired to fix the prices of DRAM sold to certain computer and server manufacturers. Affected customers included Dell, Compaq, Hewlett Packard, Apple, IBM and Gateway. 1. Moreover, Elpida was charged with and pleaded guilty to carrying out a bidrigging conspiracy by: Participating in meetings, conversations, and communications in the United States and elsewhere to discuss allocating (i.e., dividing up) a bid offered by Sun among themselves; Agreeing, during those meetings, conversations, and communications to allocate a bid offered by Sun; Allocating, in accordance with the agreements reached, a bid offered by Sun among themselves, denying Sun a competitive price; Participating in meetings, conversations, and communications, to submit complementary bids to ensure the success of their agreement; and Submitting complementary bids for one lot of a particular product, denying Sun a competitive price. 1. D. James Sogas, an Elpida employee and former Hitachi employee, pleaded guilty in December 0. This guilty plea covered the period April 1, 01, until on or about June, 0, wherein Mr. Sogas conspired to fix the prices of DRAM sold to certain original equipment manufacturers. 1. An example of Elpida s illegal behavior is that an Elpida employee wrote s saying that she confirmed with Samsung and Infineon regarding their prices to --

24 1 1 1 Hewlett Packard, and suggested that Elpida bid the same price. G. Mosel Vitelic s Conduct 1. Plaintiffs have identified at least Mosel employees who participated in conspiratorial conduct during the Class Period. Five Mosel executives asserted their Fifth Amendment rights: Rajit Shah (Vice President of Worldwide Sales & Marketing); Ron Farrell (Manager, Product Marketing); Mohammed Iqbal (Director, Memory Products, Marketing); Kim Michael Ramirez (Manager, Strategic Marketing, Special DRAMs); and Nathan Handelsman (Market Research Analyst). 1. In May 0, Thomas Chang admitted that Mosel had reached an agreement with Hynix and Samsung to push up DRAM prices to US $ a chip by stopping dumping. Chang continued: Hynix and Samsung executives visited Mosel Vitelic and Nanya Technology Corp. recently to discuss the agreement. 1. Using information supplied by competitors, Mosel Vitelic implemented a formal price index system to track DRAM prices by vendor. 1. The Director of Marketing ed competitor-provided price guidelines to Mosel Vitelic employees and advised them to negotiate prices accordingly. H. Nanya s Conduct 1. Plaintiffs have identified at least Nanya employees who participated in conspiratorial conduct during the Class Period. Three Nanya executives asserted their Fifth Amendment rights: Michael Walsh (Strategic Accounts Manager); David Dwyer (European Sales & Marketing Manager) and Brian Donahue (North America Sales & Marketing). 1. Michael Walsh provided a -page spreadsheet detailing Nanya s price targets at Compaq for the next month to a former Hitachi employee, Jim Sogas, who later pleaded guilty to his involvement in the DRAM conspiracy. measures: 1. An official at Nanya was also quoted in the press discussing anticompetitive Everyone is feeling the need of cutting production, said Charles Kau, an executive vice president with Linko-based Nanya --

25 1 1 1 I. Micron s Conduct Technology. As of how to engage in the cut is an issue that needs to be discussed. Nanya is willing to cooperate in such a cut, he added. 1. Micron and its executives, except Regional Sales Manager Alfred Censullo, all escaped criminal charges because Micron turned on Defendants and their co-conspirators and entered the Department of Justice s Corporate Leniency Program. Mr. Censullo pleaded guilty to an obstruction of justice charge, whereby Censullo admitted to having withheld and altered documents responsive to a grand jury subpoena served on Micron.. That Micron admitted its participation in a conspiracy to the DOJ is not surprising: Micron acknowledged at least 1 of its executives and other employees had conspiratorial contacts with Defendants and their co-conspirators, including Hynix, Infineon, Samsung, Elpida, Hitachi, NEC, Mosel Vitelic, Nanya, Winbond, and Toshiba, with regard to at least the following customers: Apple, Dell, Compaq, IBM, Gateway, Sun, Cisco, Thomson, Seagate, Hewlett Packard, and Maxtor.. Despite the fact that Micron s amnesty application was accepted, Micron s Vice President of Worldwide Sales, Michael Sadler, took the Fifth Amendment at his deposition in this case. Mr. Sadler traveled the world discussing inventory pullbacks, production decreases, and prices with Micron s competitors. In addition, Mr. Sadler was copied on hundreds of internal s in which employees discussed their illegal activities. 1. The following are examples of Micron s illegal behavior: a. Mr. Sadler encouraged Keith Weinstock, an IBM account manager at Micron, to develop contacts at competitors. Mr. Weinstock spoke regularly to his counterpart at Hynix, discussing pricing information for Samsung, Infineon, Toshiba, and others. b. Micron employee Bill Lauer kept a spreadsheet with competitors prices at the major OEMs and asked sales representatives for those accounts to keep competitors pricing information up-to-date in real --

26 1 1 1 time. IX. ACTIVE CONCEALMENT 1. Throughout and beyond the conspiracy, Defendants and their co-conspirators affirmatively and actively concealed their unlawful conduct from Plaintiffs. Defendants and their co-conspirators conducted their conspiracy in secret and publicly provided pretextual and false justifications regarding their price increases. 1. Plaintiffs did not discover, and could not have discovered through the exercise of reasonable diligence, that Defendants and their co-conspirators were violating the antitrust laws as alleged herein until shortly before class action litigation against conspiracy members commenced in To ensure the conspiracy s effectiveness, Defendants and their co-conspirators extended the conspiracy beyond the contract market and into the DRAM spot market. 1. As a result of the active concealment of the conspiracy by Defendants and their co-conspirators, any and all applicable statutes of limitations otherwise applicable to the allegations herein have been tolled. X. VIOLATIONS ALLEGED First Claim for Relief (Violation of Section 1 of the Sherman Act) 1. Plaintiffs incorporate and re-allege, as though fully set forth herein, each and every allegation set forth in the preceding paragraphs of this Complaint. 1. Beginning at a time presently unknown to Plaintiffs, but at least as early as January 1,, and continuing through at least December 1, 0, the exact dates being unknown to Plaintiffs, Defendants and their co-conspirators entered into a continuing agreement, understanding, and conspiracy in restraint of trade to artificially raise, fix, maintain, and/or stabilize prices for DRAM in the United States, in violation of Section 1 of the Sherman Act, U.S.C In formulating and carrying out the alleged agreement, understanding, and --

27 1 1 1 conspiracy, the Defendants and their co-conspirators did those things which they combined and conspired to do, including but not limited to the acts, practices, and course of conduct set forth above, and the following, among others: a. To fix, raise, maintain, and stabilize the price of DRAM; b. To allocate markets for DRAM among themselves; c. To submit rigged bids for the award and performance of certain DRAM contracts; and d. To allocate among themselves the production of DRAM.. The combination and conspiracy alleged herein has had the following effects, among others: a. Price competition in the sale of DRAM has been restrained, suppressed, and/or eliminated in the United States; b. Prices for DRAM sold by Defendants and their co-conspirators have been fixed, raised, maintained and stabilized at artificially high, noncompetitive levels throughout the United States; and c. Those who purchased DRAM directly or indirectly from Defendants and their co-conspirators have been deprived of the benefits of free and open competition.. Plaintiffs have been injured in their business and property by paying more for DRAM purchased indirectly from Defendants and their co-conspirators than they would have paid in the absence of the combination and conspiracy, including paying more for products in which DRAM is a component, as a result of higher prices paid for DRAM by the manufacturers of those products. Second Claim for Relief (Violation of the California Cartwright Act) 1. Plaintiffs incorporate and re-allege, as though fully set forth herein, each and every allegation set forth in the preceding paragraphs of this Complaint. --

28 Defendants and their co-conspirators contract, combination, trust or conspiracy was centered in, carried out and perfected mainly within the State of California, and injured all members of the Class throughout the United States. Therefore, this claim for relief under California law is brought on behalf of all members of the Class, whether or not they are California residents 1. Beginning at a time presently unknown to Plaintiffs, but at least as early as January 1,, and continuing thereafter at least up to and including December 1, 0, Defendants and their co-conspirators entered into and engaged in a continuing unlawful trust in restraint of the trade and commerce described above in violation of Section, California Business and Professions Code. Defendants and each co-conspirator acted in violation of Section to fix, raise, stabilize and maintain prices of, and allocate markets for, DRAM at supra-competitive levels. 1. The aforesaid violations of Section, California Business and Professions Code, consisted, without limitation, of a continuing unlawful trust and concert of action among Defendants and their co-conspirators, the substantial terms of which were to fix, raise, maintain, and stabilize the prices of, and to allocate markets for DRAM. 1. For the purpose of forming and effectuating the unlawful trust, Defendants and their co-conspirators have done those things which they combined and conspired to do, including but in no way limited to the acts, practices and course of conduct set forth above and the following: a. To fix, raise, maintain, and stabilize the price of DRAM; b. To allocate markets for DRAM amongst themselves; c. To submit rigged bids for the award and performance of certain DRAM contracts; and d. To allocate amongst themselves the production of DRAM. 1. The combination and conspiracy alleged herein has had, inter alia, the following effects: --

29 1 1 1 a. Price competition in the sale of DRAM has been restrained, suppressed and/or eliminated in the State of California and throughout the United States; b. Prices for DRAM sold by Defendants and their co-conspirators have been fixed, raised, maintained and stabilized at artificially high, noncompetitive levels in the State of California and throughout the United States; and c. Those who purchased DRAM from Defendants and their coconspirators have been deprived of the benefit of free and open competition. 1. Plaintiffs and the other members of the Class paid supra-competitive, artificially inflated prices for DRAM and products containing DRAM. 1. As a direct and proximate result of Defendants and their co-conspirators unlawful conduct, Plaintiffs and Class members have been injured in their business and property because they paid more for DRAM and products containing DRAM than they otherwise would have paid in the absence of Defendants and their co-conspirators unlawful conduct. As a result of Defendants and their co-conspirators violation of Section of the California Business and Professions Code, Plaintiffs seek damages and the costs of suit, including reasonable attorneys fees, pursuant to Section 0(a) of the California Business and Professions Code. Third Claim for Relief (Violation of the California Unfair Competition Law) 0. Plaintiffs incorporate and re-allege, as though fully set forth herein, each and every allegation set forth in the preceding paragraphs of this Complaint. 1. Defendants and their co-conspirators business acts and practices were --